Why Should I Have A Will?
If a valid will exists, a will controls how a person’s estate is handled once that person dies. The purpose of a will is to clearly set forth your decisions in regard to distributing the assets in your estate. In addition, if you have minor children, a guardian can be designated in your will, your funeral/burial wishes can be set forth in your will, and testamentary trusts can be created.
Generally, dying without a will makes the probate process more expensive. If you die without a will, your assets may be tied up in the probate process for a while. With that, attorney fees and court costs add up quickly, especially if probate becomes contentious. In addition, without a will, you have no decision-making ability in who gets your assets. Assets will be distributed in accordance with Texas law.
We often get the question “Isn’t it expensive to have a will drafted?” It shouldn’t be. The answer depends on the size of your estate, but most estates are not elaborate and estate planning is not as expensive as one may think it is.
We also get asked “can I draft my own will?” Yes, you can, but you must be careful. Texas law has specific requirements for a will to be valid and enforceable. Failure to follow one of these requirements could invalidate your will. An attorney can make sure it is done right.
Who Inherits If I Die Without A Will?
If a person dies without a will, they are considered to have died intestate and Texas law decides how property is distributed. Under those provisions, how a property is distributed depends on whether a property is considered separate property or community property.
Separate property includes any property owned by the deceased prior to marriage, any property gifted to the deceased during their marriage, and any property acquired by the deceased as an inheritance from someone else. Community property as all property acquired or accumulated during the marriage, other than property acquired by gift or inheritance. The classification of property as either separate or community property can be confusing and difficult to decipher, but proper classification is imperative to proper distribution.
Separate Property is divided as follows:
If a person dies with a spouse and children, the surviving spouse takes one-third of the personal property, and the remaining two-thirds of the personal property is divided equally among the child or children of the deceased. The surviving spouse of the decedent is also entitled a one-third life estate interest of the real estate of the deceased, with that one-third going to the children or descendants upon that surviving spouses death.
If a person dies without a spouse but is survived by each of the children born to him or her during life, all of the property is divided equally between the children.
If a person dies with a surviving spouse but does not leave any children or descendants, the spouse is entitled to all of the personal property and to one-half of the real property. The other half of the real property would go to the father and mother of the deceased in equal portions. If only one parent survived the deceased, then that share of the real estate would be divided into two equal portions, one passing to the surviving parent, and the other passing to the siblings of the deceased. If there were no siblings, the entire share would pass to the parent. If no parent survived the deceased, and there were siblings, the entire share would pass to the siblings.
If a person dies without a spouse and without children, the following may apply:
- If both parents survive the decedent, then their estate passes to their father and mother,
in equal portions.
- If only one parent survives the deceased, then their estate will be divided into two
equal portions, one of which will pass to the surviving parent, and the other passes to
the siblings of the deceased. However, if the decedent had no siblings, then all of the
separate property would pass to the sole surviving parent.
- If neither parent is alive, but there are surviving siblings, then the whole estate passes
to the siblings of the deceased.
- If there is no parent nor sibling alive at the time of death of the decedent, the
inheritance is divided into two equal parts. One part is passed to the paternal kindred,
and the other is passed to the maternal kindred, in the following course:
- To the grandfather and grandmother in equal portions if both are living.
- If only one grandparent is living then the estate is split into two equal parts and
one part goes to the surviving grandparent and the other goes to the descendant
or descendants of such deceased grandparent.
- If there is no surviving grandparent, then the whole of the estate goes to their
descendants, and so on without end, passing in like manner to the nearest lineal
ancestors and their descendants, but never to the state.
Community Property is divided as follows:
If the deceased had no children, then the entire community estate passes to the surviving spouse.
If the deceased had children, and all of such children were also the children of the surviving spouse, then the entire community estate passes to the surviving spouse.
If the deceased had children or descendants other than those of the surviving spouse, then the surviving spouse retains her one-half share of the community property, and the decedent’s one-half share of the community property is divided equally between the children or descendants of the deceased.
It is important to note that some assets do not need to go through the probate process if they have named beneficiaries such as life insurance policies, pension plans, bank accounts payable on death, and retirement accounts.
Hammond Law Firm, PLLC offers will packages for a flat fee that includes a will and other important ancillary documents. In addition, Hammond Law Firm, PLLC is able to advise on your estate planning needs or answer your estate planning questions. If there is something we can help with, please call us as 903-716-6668.